ELIJAH Digest – August 2017

IN THE NEWS

Effective December 1, 2017, amended Rule 902 of the Federal Rules of Evidence is expected to go into effect. The amended rule makes clear that assuming compliance with notice requirements, two new categories of evidence will be considered self-authenticating: (a) records “generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person”; and (b) data “copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person”.

These amendments will create a strong incentive to perform forensically sound collections using qualified computer forensic experts, while ultimately reducing the likelihood of needing to spend resources to have such an expert testify at trial merely to authenticate evidence. Although using a skilled forensic expert to perform data collections could marginally increase litigation cost on the front end, the rule reduces costs downstream and creates incentives that reduce legal risk and ultimately lead to better results.

The Committee Notes for amended Rule 902(14) explain that the amendment “allows self-authentication by a certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original,” and that the “rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.” ELIJAH validates collections of electronically stored information through the use of hash values – essentially digital fingerprints – or through other reliable means when hash value comparison is impractical, and is well positioned to help clients collect data in a manner that would eliminate the need for downstream authenticating testimony.

Amended Rule 902 does not mean, however, that testimony of computer forensic experts will be rendered unnecessary. Digital forensic experts can provide vital testimony regarding the meaning, significance, and timing of digital data artifacts. Disputes will continue to arise regarding the accuracy, ownership, control, and relevance of digital evidence, upon which the investigation and analysis of computer forensic experts often can shed light. And of course, not every party will comply with the notice requirements of Rule 902, nor are state courts bound by the federal rules.

Ultimately, we believe that the amendments to Rule 902 of the Federal Rules of Evidence represent a positive step towards encouraging proper evidence collection techniques while reducing potentially unnecessary expenses. The team at ELIJAH looks forward to discussing how we can help you meet those goals!